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Procedure: Surveillance

Purpose

To inform Claims Managers acting for the University of the procedure for the use of covert optical surveillance in workers’ compensation claims under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) (Cth). This procedure is linked to the University’s Rehabilitation and Compensation Policy.

Definitions

Claims Manager is the person responsible for managing and determining workers compensation benefits payable, as delegated by the principal officer of a licensed authority, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), Section 108H.

Covert optical surveillance is the secretive, continuous or periodic observation of persons, vehicles, places or objects to obtain information concerning the activities of individuals which is then recorded in material form including notes and photographs.

Workers’ compensation is a system that provides financial benefits and other assistance to employees (and/or their dependants) who sustain an injury at their place of work.

Procedure

Scope

  1. This procedure applies to all staff members of the University.

Overview

  1. It is a condition of the University’s SRC Act license that the University has in place a Surveillance Procedure which satisfies the requirements of the Privacy Act 1988 (Cth) (Privacy Act) and any guidelines issued by the Privacy Commissioner, and that we comply with this procedure. The Privacy Commissioner issued “Covert Surveillance in Commonwealth Administration – Guidelines” published in February 1992. Part two of these Guidelines provides a guide for the conduct of covert surveillance by optical means when used in claims for workers’ compensation. It is the University’s procedure to comply with these guidelines.
  2. The only form of surveillance to be conducted by or on behalf of the University is optical surveillance relevant to assessing liability for workers’ compensation.

Requests to conduct surveillance

  1. To assist Claims Managers, the Application to conduct surveillance for workers’ compensation purposes must be applied in all cases where surveillance is considered in workers’ compensation matters.
  2. Covert optical surveillance may be required in compensation claims where misrepresentation of disabilities, claiming excessive benefits, malingering or fraudulent activity is suspected.
  3. Covert optical surveillance is an activity which intrudes into the privacy of individuals. Surveillance should not be used as a routine procedure. Alternative methods of investigation are preferable and should be exhausted before surveillance is authorised. There must be documentary evidence to outline the alternative methods of investigations that were considered before proceeding to optical surveillance.
  4. All surveillance, including surveillance conducted in relation to a claim which is the subject of dispute resolution or legal proceedings, should be conducted in accordance with the Covert Surveillance in Commonwealth Administration Guidelines and following an established process documented within the ANU Claims Management System Manual.
  5. All requests to conduct surveillance must be made by the Claims Manager or delegated authority, to the Director Human Resources (DHR) or other nominated officer within the University, as notified from time to time.
  6. Proper authorisation using the Application to conduct surveillance for workers’ compensation purposes must be completed and signed by the appropriate nominated officer.
  7. Third party consultants conducting covert surveillance activities on behalf of the University will be sourced and directed by the Claims Manager. To avoid doubt, the only form of surveillance to be conducted is optical surveillance.
  8. Consultants conducting covert optical surveillance activities on behalf of the University will be issued with written instructions on the University’s procedure, guidelines and standards as applicable and detailed in the Claims Management Manual, and will be required to agree with these conditions prior to proceeding.
  9. All covert optical surveillance activities will be conducted in a lawful manner that is consistent with Commonwealth legislation and policy.
  10. Consultants conducting optical surveillance on behalf of the University will be sourced from fully licensed and insured private investigation firms.

Administrative Appeals Tribunal and litigation and dispute resolution issues

  1. The ‘Application to conduct surveillance for workers’ compensation purposes’ form must be approved by the DHR or nominated officer before any surveillance is commenced in relation to matters which are the subject of dispute resolution or legal proceedings.

Access, storage and destruction of surveillance material

  1. The Archives Act 1983 (Cth) is the principal control in respect to the storage and destruction of surveillance material obtained for workers’ compensation purposes. The National Archives of Australia Administrative Functions Disposal Authority (AFDA), issued in February 2000, provides, for workers’ compensation related material: - “Destroy 75 years after date of birth of employee or 7 years after last action whichever is longest. If date of birth is unknown assume the person was 15 at the time of the accident.”

Review of surveillance material

  1. The University must, in accordance with the Privacy Commissioner’s Guidelines, periodically review surveillance material maintained on files to assess the need for its retention.
  2. If surveillance material has not been used in the determination of liability or litigation then the need for its retention must be reviewed annually in accordance with the Privacy Commissioner’s recommendation. All affected claims should be reviewed on a common date by the Claims Manager.
  3. This review should document the reasons why the Claims Manager has decided to either retain or destroy the surveillance material, and such reasons should be retained on the surveillance file and the claims management file.

Retention of surveillance material

  1. In all surveillance matters, regardless of outcomes, a completed approval form, details of when surveillance was conducted, and related surveillance material, should be retained indefinitely on a separate official file for each surveillance matter (the Surveillance File). A Surveillance File should be stored separately from the workers compensation claim file.

Surveillance and investigation enquiries

  1. Where requests for information on use of surveillance, or other investigation methods, are received the Claims Manager should inform the claimant that:
  • accepted compensation claims are routinely reviewed to determine whether the University remains liable for the claim;
  • not all such reviews involve formal investigation, and not all investigations, where they occur, involve surveillance; and
  • it is the University’s policy to neither confirm nor deny whether a particular claim is under formal investigation.

Action

  1. All Claims Managers or delegated authority must ensure that the processes outlined in this procedure are understood and correctly applied. In addition, claims staff should be familiar with their responsibilities, the sensitivities associated with the use of surveillance and the related privacy implications, as outlined in this procedure.

Sources

Legal and other requirements

Work Health and Safety Act 2011 (Cth)

Work Health and Safety Regulations 2011 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Archives Act 1983 (Cth)

https://www.oaic.gov.au/images/documents/migrated/migrated/covertsurveillance.pdf

Information

Printable version (PDF)
Title Surveillance procedure
Document Type Procedure
Document Number ANUP_018028
Version 1
Purpose To inform Claims Managers acting for the University of the procedure for the use of covert optical surveillance in workers’ compensation claims under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) (Cth). This procedure is linked to the University’s Rehabilitation and Compensation Policy
Audience Staff
Category Administrative
Topic/ SubTopic Health, Safety & Environment - Occupational Health & Safety
 
Effective Date 1 Jul 2018
Review Date 1 Jul 2021
 
Responsible Officer Director, Human Resources
Approved By: Chief Operating Officer
Contact Area Human Resources Division
Authority National Self-Insurer WHS Audit Tool
Work Health & Safety Act 2011
Work Health and Safety Regulations 2011
Safety, Rehabilitation and Compensation Act 1988